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Article 132 UCMJ Retaliation Threatening or Taking Adverse Personnel Action

Note: This law applies only to Article 132 UCMJ Retaliation Threatening or Taking Adverse Personnel Action offenses allegedly committed on or after 1 January 2019.

What is Article 132 UCMJ Retaliation Threatening or Taking Adverse Personnel Action?

Article 132 UCMJ Retaliation Threatening or Taking Adverse Personnel ActionArticle 132 of the Uniform Code of Military Justice (UCMJ) addresses retaliation, specifically threatening or taking adverse personnel action. This law, which applies to offenses committed after January 1, 2019, covers actions taken to retaliate against individuals who have reported misconduct or participated in military justice proceedings. Penalties for this offense are severe and include up to three years of confinement, dishonorable discharge, total forfeiture of pay, and reduction in rank.

If accused of retaliation under Article 132 UCMJ, securing the services of the best military defense lawyers is crucial. These lawyers understand the complexities of military law and can navigate the intricate processes of courts-martial. Retaliation charges can have far-reaching consequences, including career loss, benefits, and reputation. Experienced Article 120 UCMJ lawyers can meticulously examine the evidence, challenge the prosecution’s case, and provide robust defense strategies to protect the accused’s rights and future.

The severity of the charges and the potential for significant personal and professional impact make it essential to have a knowledgeable defense team. The best military defense lawyers offer the necessary support and legal acumen to handle such complex cases, ensuring that the accused receives a fair trial and the best possible defense. For those facing Article 132 UCMJ retaliation charges, seeking skilled legal representation is critical in defending their rights and preserving their future.

Elements of Article 132 UCMJ Retaliation Elements – Threatening or Taking Adverse Personnel Action?

  1. That (state the time and place alleged), the accused wrongfully [(took) (threatened to take) an adverse personnel action against ________, to wit: ____________] [(withheld) (threatened to withhold) a favorable personnel action with respect to _________, to wit: _____________]; and
  2. That, at the time of the action, the accused intended to retaliate against __________ for (reporting or planning to report a criminal offense) (making or planning to make a protected communication).

What are the Maximum Punishments for Article 132 UCMJ Retaliation Threatening or Taking Adverse Personnel Action?

Maximum Punishment for Article 132 UCMJ Retaliation Threatening or Taking Adverse Personnel Action offenses committed between 1 Jan 2019 to 27 Dec 2023:

Maximum Punishment for Article 132 UCMJ Retaliation Threatening or Taking Adverse Personnel Action offenses committed after 27 Dec 2023

  • Under the Sentencing Parameters, Article 132 UCMJ Retaliation Threatening or Taking Adverse Personnel Action is a Category 2 Offense
  • Mandatory confinement ranges from 1-36 months (1 month to 3 years)
  • Dishonorable Discharge, BCD, Dismissal
  • Total Forfeitures
  • Reduction to E-1
  • Collateral Consequences of a Federal Felony Conviction
  • Note: The Military Judge MAY impose a period of confinement less than the jurisdictional maximum period of confinement upon finding specific facts that warrant such a sentence.

Combined UCMJ Maximum Punishment Charts

Examples Article 132 UCMJ Retaliation (Threatening or Taking Adverse Personnel Action):

  1. Demoting an Employee: Reducing someone’s rank or position because they reported misconduct.
  2. Withholding Promotion: Refusing to promote a service member who has reported a violation or wrongdoing.
  3. Terminating Employment: Firing a service member after they have filed a complaint or whistleblowing report.
  4. Reassigning to Less Desirable Duties: Moving a whistleblower to menial or undesirable tasks as punishment.
  5. Negative Performance Evaluation: Giving an unjustifiably poor performance review to someone who has reported misconduct.
  6. Reducing Benefits: Cutting the benefits or entitlements of a service member in retaliation for reporting issues.
  7. Refusing Training Opportunities: Denying necessary training or professional development to someone who has raised concerns.
  8. Increasing Workload: Assigning an unfairly heavy workload to a service member who has made a report.
  9. Threatening Job Security: Verbally or implicitly threatening to fire someone if they report misconduct.
  10. Isolating the Employee: Intentionally excluding a whistleblower from meetings, communications, or work activities.
  11. Changing Work Location: Reassigning a service member to a remote or undesirable location as punishment for reporting issues.
  12. Removing Responsibilities: Stripping a service member of their key responsibilities after they report misconduct.
  13. Assigning Unfavorable Shifts: Scheduling a whistleblower for night shifts, weekends, or other undesirable hours.
  14. Bullying or Harassment: Creating a hostile work environment for someone who has reported misconduct.
  15. Public Shaming: Publicly criticizing or humiliating a whistleblower in front of their peers.
  16. Ignoring Requests for Leave: Unreasonably denying leave requests from someone who has reported wrongdoing.
  17. Blocking Transfers: Preventing a service member from transferring to another unit or duty station as retaliation.
  18. Downgrading Job Title: Changing the job title of a whistleblower to a less prestigious or lower-ranking one.
  19. Withholding Pay Raises: Denying merit-based pay increases to a service member who has reported misconduct.
  20. Creating False Reports: Fabricating negative reports about a service member in retaliation for their complaints.
  21. Sabotaging Work: Deliberately undermining the work of a whistleblower to make them appear incompetent.
  22. Restricting Communication: Preventing a service member from communicating with higher authorities or inspectors.
  23. Unfair Disciplinary Actions: Initiating unjustified disciplinary proceedings against a whistleblower.
  24. Denial of Awards: Refusing to grant awards or recognitions to a service member who has reported issues.
  25. Intimidating Witnesses: Pressuring or threatening witnesses who support the whistleblower.
  26. Restricting Access to Resources: Denying necessary resources or tools to a service member as punishment for reporting misconduct.
  27. Excessive Monitoring: Closely monitoring the activities of a whistleblower to create stress and anxiety.
  28. Unjust Criticism: Providing unfair and excessive criticism of a whistleblower’s work performance.
  29. Spreading False Rumors: Disseminating false information about a whistleblower to damage their reputation.
  30. Denying Advancement Opportunities: Preventing a service member from attending courses or programs necessary for career advancement.

These examples of Article 132 UCMJ Retaliation illustrate actions that could be considered retaliation under Article 132 UCMJ, undermining the integrity and fairness of military operations and violating the protections afforded to service members who report misconduct.

Types of Article 132 UCMJ Retaliation Offenses:

Sample Specification for Article 132 UCMJ Retaliation Threatening or Taking Adverse Personnel Action

In that COL Dick Stone, US Army, did, at or near Fort Eisenhower, Georgia, on or about 27 Oct 2024, with intent to retaliate against Jane Victim for reporting a criminal offense, wrongfully took an adverse personnel action against Jane Victim to wit: Removed her Purple Heart Award that had been submitted by her previous command.

Model Specification for Article 132 UCMJ Retaliation Threatening or Taking Adverse Personnel Action

In that __________ (personal jurisdiction data), did (at/on board—location), on or about __________, with intent to retaliate against _____________ for [(reporting) (planning to report) a criminal offense] [(making) (planning to make) a protected communication], wrongfully [(took) (threatened to take) an adverse personnel action against _______________ to wit: ____________] [(withheld) (threatened to withhold) a favorable personnel action with respect to __________ to wit: ____________].

What are the Definitions for Article 132 UCMJ Retaliation Threatening or Taking Adverse Personnel Action?

As examples of “laws or regulations” and “defining personnel actions,” the MCM’s explanation of this offense cites 5 USC 2302 and DoD Directive 7050.06 (17 April 2015).

Article 132 UCMJ Retaliation Threatening or Taking Adverse Personnel Action military defense lawyerFor service members, “personnel action” under Article 132 UCMJ Retaliation Threatening or Taking Adverse Personnel Action means any action taken on a servicemember that affects, or has the potential to affect, that servicemember’s current position or career, including promotion, disciplinary or other corrective action, transfer or reassignment, performance evaluations, decisions concerning pay, benefits, awards, or training, relief and removal, separation, discharge, referral for mental evaluations, and any other personnel actions as defined by law or regulation.

For civilian personnel, “personnel action” under Article 132 UCMJ Retaliation Threatening or Taking Adverse Personnel Action means any action taken on a civilian employee that affects, or has the potential to affect, that person’s current position or career, including promotion; disciplinary or other corrective action; transfer or reassignment; performance evaluations; decisions concerning pay, benefits, awards, or training; relief and removal; discharge; and any other personnel actions as defined by law or regulation.

An action is taken with the “intent to retaliate” when the personnel action taken or withheld, or threatened to be taken or withheld, is done for the purpose of reprisal, retribution, or revenge for reporting or planning to report a criminal offense or for making or planning to make a protected communication.

“Wrongfully” means an act done without legal justification or excuse. Taking or threatening to take adverse personnel action or withholding or threatening to withhold favorable personnel action is wrongful when used for reprisal rather than for lawful personnel administration.

“Criminal offense” under Article 132 UCMJ Retaliation Threatening or Taking Adverse Personnel Action means violations of criminal law under the Uniform Code of Military Justice, the United States Code, or state law.

What is Protected communication under Article 132 UCMJ Retaliation Threatening or Taking Adverse Personnel Action? If a “protected communication” is alleged, the judge must craft an appropriate instruction using the definitions below.

“Protected communication” under Article 132 UCMJ Retaliation means: A lawful communication to a Member of Congress or an Inspector General or A communication to a covered individual or organization in which a member of the armed forces complains of or discloses information that the member reasonably believes constitutes evidence of (1) a violation of law or regulation, including a law or regulation prohibiting sexual harassment or unlawful discrimination, or (2) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.

“Inspector general” under Article 132 UCMJ Retaliation Threatening or Taking Adverse Personnel Action means the Inspector General of the Department of Defense; the Inspector General of the Department of Homeland Security, in the case of a member of the Coast Guard when the Coast Guard is not operating as a service in the Navy, or;  any officer of the armed forces or employee of the Department of Defense who is assigned or detailed to serve as an Inspector General at any level in the Department of Defense.

“Covered individual or organization” means a Member of Congress; an Inspector General; a member of a Department of Defense audit, inspection, investigation, or law enforcement organization; any person or organization in the chain of command, or a court-martial proceeding.

“Unlawful discrimination” under Article 132 UCMJ Retaliation Threatening or Taking Adverse Personnel Action means discrimination based on race, color, religion, sex, or national origin.

Threatens to take or withhold under Article 132 UCMJ Retaliation Threatening or Taking Adverse Personnel Action. When the accused is charged with threatening to take an adverse personnel action or withhold a favorable personnel action, provide the instruction below.

Proof that the accused intended to (take an adverse personnel action) (or withhold a favorable personnel action) is not required. However, the accused must have had the “intent to retaliate” against ______________ for (reporting or planning to report a criminal offense) (making or planning to make a protected communication) when the threat was made. A declaration made under circumstances that reveal it to be in jest or for an innocent or legitimate purpose or which contradicts the expressed intent to commit the act does not constitute this offense.

Potential Collateral Consequences of a Federal Conviction for Article 132 UCMJ Retaliation Threatening or Taking Adverse Personnel Action

  • Employment will be severely limited (many employers won’t hire a convict)
  • Inability to enroll in college, university, or trade school
  • Loss of GI Bill
  • Loss of military career
  • Loss of retirement benefits.
  • Loss of VA benefits.
  • Loss of medical benefits.
  • Loss of spouse, family members, and friends
  • Loss of income while in jail
  • Mental, physical suffering before and after prison
  • Ineligibility for public benefits, such as food stamps
  • Ineligibility for government-sponsored student loans and grants;
  • Restrictions on certain types of employment or occupational licenses;
  • Ineligibility to provide foster care to minor family members
  • Prohibitions on working with children
  • Loss of professional license or certification
  • Limitations on adoption or foster care

Article 132 UCMJ Retaliation Threatening or Taking Adverse Personnel Action Military Defense Lawyers

Article 132 UCMJ Retaliation Threatening or Taking Adverse Personnel Action addresses the offense of retaliation against individuals for making protected communications or performing certain activities. This article aims to protect service members from adverse actions taken against them in response to their lawful activities, including reporting misconduct or participating in investigations.

Basics of Article 132 UCMJ Retaliation Threatening or Taking Adverse Personnel Action

  1. Protected Communications: This includes reports of violations of law or regulations, fraud, waste, abuse, and other misconduct. Protected communications can be made to various authorities, including members of Congress, inspectors general, law enforcement organizations, and chain of command officials.
  2. Adverse Personnel Actions: These are actions taken by a superior against a subordinate that negatively impact the latter’s career, including demotions, negative performance evaluations, reassignments, and other punitive measures.
  3. Threats of Adverse Action: Even if the adverse action is not ultimately carried out, threatening to take such actions in retaliation for protected communications is prohibited.

Purpose and Importance of Article 132 UCMJ Retaliation Threatening or Taking Adverse Personnel Action

The inclusion of Article 132 in the UCMJ serves several crucial purposes:

  • Protecting Whistleblowers: Encouraging service members to report misconduct without fear of reprisal is essential for maintaining integrity and accountability within the military.
  • Promoting Ethical Conduct: By safeguarding individuals who report wrongdoing, Article 132 helps to uphold ethical standards and foster a culture of transparency and accountability.
  • Ensuring Fair Treatment: Protecting service members from retaliation ensures that they can perform their duties and report misconduct without fear of adverse consequences.

Examples of Article 132 UCMJ Retaliation Threatening or Taking Adverse Personnel Action

Article 132 UCMJ Retaliation Threatening or Taking Adverse Personnel Action can take many forms, including:

  • Negative Performance Evaluations: Giving unjustifiably poor evaluations to a service member who has reported misconduct.
  • Unwarranted Reassignments: Moving a service member to a less desirable position or location as a form of punishment for reporting issues.
  • Denial of Promotions: Blocking a service member’s career advancement due to their participation in protected communications or investigations.
  • Disciplinary Actions: Imposing unwarranted disciplinary measures in response to a service member’s protected activities.

Consequences for Violations of Article 132 UCMJ Retaliation Threatening or Taking Adverse Personnel Action

Violating Article 132 UCMJ can result in severe penalties, including:

  • Confinement: Service members found guilty of retaliation can face imprisonment.
  • Reduction in Rank: A conviction can lead to a demotion, which can significantly impact the service member’s career and future prospects.
  • Dishonorable Discharge: This can end a military career and result in the loss of veterans’ benefits.
  • Forfeiture of Pay: Financial penalties can be imposed, further adding to the impact of a conviction.
  • Legal Defense for Article 132 UCMJ Retaliation Threatening or Taking Adverse Personnel Action

Accusations of violating Article 132 UCMJ Retaliation Threatening or Taking Adverse Personnel Action necessitate immediate legal representation from experienced military defense lawyers. The complexity of such cases requires a robust defense strategy, which can include:

  • Challenging the Evidence: Questioning the validity and sufficiency of the evidence presented by the prosecution.
  • Demonstrating Lawful Actions: Proving that any adverse actions taken were justified and unrelated to the protected communications.
  • Highlighting Procedural Errors: Identifying any violations of due process or procedural mistakes during the investigation and trial.

Importance of Legal Representation in Article 132 UCMJ Retaliation Threatening or Taking Adverse Personnel Action Cases

Given the serious nature of retaliation charges and the potential penalties, securing representation from the best military defense lawyers is crucial. These lawyers can:

  • Navigate the Complex Legal Landscape: Military law is intricate, and experienced lawyers can effectively manage the complexities of the UCMJ.
  • Protect the Rights of the Accused: Ensuring that the accused’s rights are upheld throughout the legal process is essential for a fair trial.
  • Develop a Strong Defense: A knowledgeable lawyer can craft a defense strategy that challenges the prosecution’s case and seeks the best possible outcome for the accused.

Article 132 UCMJ Retaliation Threatening or Taking Adverse Personnel Action is a vital mechanism for protecting service members from retaliation, ensuring they can report misconduct without fear of adverse consequences. Violations of this article are taken seriously, with severe penalties for those found guilty.

For accused service members, securing the best military defense lawyers is essential to navigate the complexities of the UCMJ, protect their rights, and achieve a fair outcome. Effective legal representation is crucial in defending against retaliation charges and ensuring justice within the military justice system.

If you are suspected or accused of Article 132 UCMJ Retaliation Threatening or Taking Adverse Personnel Action, speak with one of our experienced military court martial lawyers to discuss your case.

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